Opinion
03 CV 5239 (GBD).
July 13, 2005
MEMORANDUM DECISION AND ORDER
After a jury verdict in favor of defendant, plaintiff moves for a new trial pursuant to Federal Rule of Civil Procedure 59. Plaintiff argues that defendant's expert witness's testimony at trial was in violation Federal Rule of Civil Procedure 26(a)(2), and should have been excluded under Federal Rule of Civil Procedure 37(c)(1). Plaintiff moves for a new trial based upon the admission of defendant's expert witness testimony over objection, and because the jury verdict was against the weight of the evidence and a miscarriage of justice. For the reasons stated below, plaintiff's motion for a new trial is denied.
Defendant filed a cross-motion to strike an expert report written after the trial and appended to plaintiff's motion for a new trial.
BACKGROUND
On August 14, 2001, plaintiff Gina Lormé was a passenger on a Delta Airlines aircraft that collided with another aircraft while taxiing on the runway. Plaintiff brought suit, claiming that the collision herniated two lower back discs "that necessitated major spinal surgery, and caused her permanent partial disability." (J. Pre-Trial Order at 2). After a week trial, the jury found that defendant's negligence did not cause plaintiff's injuries.
Plaintiff presently moves for a new trial on two grounds. First, plaintiff claims that "the jury's verdict was based on intentionally concealed expert testimony" in violation of Federal Rule of Civil Procedure 26. Plaintiff specifically claims that defendant introduced at trial "previously undisclosed opinions of [defendant's] hired orthopedic expert, Herbert Sherry, M.D., that [plaintiff's] herniated discs existed prior to the August 14, 2001 collision." (Pl.'s Mem. of Law Supp. Mot. for a New Trial at 1). Plaintiff further contends that Dr. Sherry's testimony was "clearly erroneous or false and was a miscarriage of justice," and that the jury disregarded the court's charge. (Pl.'s Notice of Mot. for a New Trial at 1).
Before trial, defendant's expert Dr. Sherry, filed a report disclosing his intended testimony. The report described plaintiff's current condition and summarized her medical history. It took account of Dr. Sherry's personal examination of plaintiff and his review of her medical records, including a report by Dr. Steven Meed ("Dr. Meed's Report"), plaintiff's treating physician. Dr. Sherry also reviewed an August 21, 2001, MRI examination (and report) of plaintiff's lower spine taken a week after the collision. Dr. Meed's Report and the MRI were introduced as evidence by the plaintiff, and were available to both parties before trial. Dr. Meed's Report discussed the previous treatment he gave plaintiff in July 1999 for her right hip and right shoulder pain. It also described plaintiff as "substantially obese." The MRI report evaluated the state of plaintiff's spine and noted that two of her spinal discs (L4-5) presented a "degenerative" condition (both discs were later surgically replaced).
The report read, "[t]here are degenerative type I end-plate marrow change at L4-5." (Pl.'s Mot. For a New Trial Ex. 3).
In his report, based on plaintiff's medical records, Dr. Sherry commented on plaintiff's general health and also observed that she had been diagnosed with "morbid obesity." (Dr. Sherry Report at 3). He also addressed plaintiff's lower back ailments, specifically, the disc replacement surgery she underwent in July 2002 and concluded that "[t]he patient's obesity is a contributing factor in the patient's developing a herniated lumbar disc." (Id). In addition, in the Joint Pre-Trial Order, defendant informed plaintiff of the position it would take during the trial, namely, that "plaintiff's alleged back injuries and resulting surgery were not causally related to the contact of the two aircraft[s]." (J. Pre-Trial Order at 3). Rather, defendant claims, they "were the result of a pre-existing physical and/or medical condition." (Id).
At trial, plaintiff objected to Dr. Sherry's anticipated testimony before Dr. Sherry was even called to testify. Later at trial, during Dr. Sherry's testimony, he was asked by plaintiff's counsel to explain the results of the MRI examination. Dr. Sherry testified that the MRI, and its corresponding report completed a week after the collision, indicate a "desiccation" or "shriveling" of the discs. (Tr. at 642). He testified further that such desiccation does not occur within a week of an acute event or trauma (such as the collision), rather, "it takes months for desiccation to show up." (Id). He concluded that a traumatically induced herniated disc would still contain liquid in it and would therefore not show on an MRI. (Id). Plaintiff's counsel objected to this testimony claiming, it was "outside the scope of [Dr. Sherry's] report." (Id). Dr. Sherry was also asked to comment on Dr. Meed's report, and to explain some of the medical terminology in it. Plaintiff's counsel again objected and moved to strike the testimony. Counsel claimed that Dr. Meed's Report wasn't mentioned in Dr. Sherry's Report, thereby precluding any such relevant testimony. (Id. at 644). Both of plaintiff counsel's objections were overruled. Dr. Sherry concluded his testimony by stating that "there is evidence that the patient's problem predated the accident of August 14, 2001." (Id. at 650).
Plaintiff's counsel "strenuously objected" to Dr. Sherry's anticipated testimony since he foresaw that Dr. Sherry would testify as to "degenerative disk disease." (Tr. at 616). Plaintiff's counsel objected to "any opinion [Dr. Sherry] might give and the basis for that opinion which is not adequately reflected in [the] report." (Tr. at 620). The court requested that plaintiff's counsel object during the examination of the witness and be more specific as to what counsel objects to, since the court could not entertain a "blanket objection" before the witness has even been called. (Id).
Plaintiff's counsel had previously called two of plaintiff's treating physicians to testify at trial: Dr. John Bendo an orthopedic surgeon, and Dr. Dennis Gage an endocrinologist. Both doctors agreed that there were "some" degenerative changes shown on plaintiff's MRI. However, those physicians opined that they were not the cause of plaintiff's herniated discs. Dr. Gage concluded that "this was an acute injury directly related to the airplane accident." (Id. at 544). Similarly, Dr. Bendo concluded that he felt "strongly that her accident precipitated her disk herniation." (Id. at 332). Dr. Sherry's testimony was in direct response to the testimony of plaintiff's two doctors.
Plaintiff appended to her motion for a new trial, a report by Dr. Meed written after the trial had ended and the jury found for defendant. The new report states that plaintiff suffered from no spinal problems and that "she had no complaints of back pain or radiating pain down the leg" while she was under Dr. Meed's care in 1999. (Pl. Notice of Mot. For a New Trial Ex. 6). Defendant cross-moved to strike from the record this post-verdict report.
DISCUSSION
A. Standard of Review
A motion for a new trial should be granted when, "in the opinion of the district court, the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). A motion pursuant to Fed.R.Civ.P. 59 is "committed to the discretion of the trial judge." See Modlin v. McAllister Brothers, Inc., 2004 WL 1594859, at *2 (S.D.N.Y. July 14, 2004); see also Marcoux v. Farm Service Supplies, Inc., 290 F.Supp.2d 457, 462 (S.D.N.Y. 2003) (finding similarly that a Rule 59 motion is within the discretion of the judge). The district court "may not disregard a jury verdict by granting a new trial unless it is reasonably clear that prejudicial error has crept into the record or that a substantial injustice has . . . been done." See Common Fund for Non-Profit Organizations v. KPMG Peat Marwick LLP, 2003 WL 1108493, at *1 (S.D.N.Y. Mar. 12, 2003) (quoting Olson v. Bradrick, 645 F.Supp. 645, 654 (D.Conn. 1986)). Thus the verdict must be "egregious" to be disregarded by the court. DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998).
B. Expert Testimony
Plaintiff claims that defendant intentionally filed an incomplete expert report so as to "deliberately conceal" Dr. Sherry's testimony at trial in violation of Rule 26, and therefore Dr. Sherry's testimony should have been excluded under Rule 37. Plaintiff specifically alleges that the Report did not include Dr. Sherry's testimony at trial regarding: the condition of plaintiff's back prior to the collision, and his testimony regarding the contents of Dr. Meed's Report.
Parties must disclose the identity of all witnesses to be brought at trial and the disclosure must "be accompanied by a written report prepared and signed by the witness." Fed.R.Civ.P. 26(a)(2)(B). The Report should include a "written statement of all opinions to be expressed and the basis for the opinions; the data used in forming the opinion; any exhibits to be used in support of the opinions; the witness's qualifications and compensation; and any other cases in which the witness had testified as an expert in the proceeding four years." Id.;McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995). In addition, "the test of a report is whether it was sufficiently complete, detailed and in compliance with the Rules so that surprise is eliminated, unnecessary depositions are avoided, and costs are reduced." Reed v. Binder, 165 F.R.D. 424, 429 (D.N.J. 1996); see also Fitz, Inc. v. Ralph Wilson Plastics Company, 184 F.R.D. 532, 535 (D.N.J. 1999). The purpose of the Rule 26 reports is to explain "`how' and `why' the expert reached a particular result." Reed, 165 F.R.D. at 429.
Further, "[a] party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). Moreover, exclusion of evidence under Rule 37 is "a matter within the trial court's discretion." See Jockey Int'l, Inc. v. M/V "Leverkusen Express," 217 F. Supp. 2d 447, 452 (S.D.N.Y. 2002); Ward v. National Geographic Soc'y, No. 99 Civ. 12385, 2002 WL 27777, at *2 (S.D.N.Y. Jan. 11, 2002).
Dr. Sherry's Report dealt extensively with plaintiff's medical history and the conclusions he drew therefrom. The report listed the procedures plaintiff underwent, the medication she had been prescribed, the pains she complained of, the tests that had been performed on her, and the results from Dr. Sherry's personal examination of plaintiff. In addition, defendant included Dr. Sherry's compensation and his previous publications. (Delta Air Lines' Rule 26(a)(2) Expert Disclosure at 5). Because Dr. Sherry's Report was sufficiently complete to satisfy Rule 26, and placed plaintiff on notice of his expected testimony, there was no element of surprise at trial.
The Report did address Dr. Sherry's trial opinion regarding plaintiff's conditions that preceded the collision and contributed to the injury. Dr. Sherry's concluding opinion in the Report expressed that "the patient's obesity is a contributing factor in the patient's developing a herniated lumbar disc." (Delta's Rule 26(a)(2) Expert Disclosure at 5). In addition, it is apparent from Dr. Meed's Report that a degenerative condition preceded the collision. (Pl.'s Notice of Motion for a New Trial Ex. 2). Furthermore, Dr. Sherry mentioned plaintiff's "severe discogenic lumbar disease" in his report. His testimony at trial regarding her preexisting conditions was within the scope of the Report and was therefore properly allowed. In fact, plaintiff's counsel anticipated Dr. Sherry's testimony to such an extent that he foresaw and sought to preclude Dr. Sherry's testimony as to the "degenerative disk disease" plaintiff's MRI showed, even before Dr. Sherry was sworn in at trial. Therefore, there was no reason for plaintiff to be surprised when later at trial, Dr. Sherry testified that plaintiff's condition was not trauma-induced, but rather "predated the accident of August 14, 2001." (Tr. at 650).
Dr. Sherry's other testimony concerning Dr. Meed's report was also properly allowed, because it merely clarified medical terms Dr. Meed employed, and did not express any novel opinions outside of Dr. Sherry's own report. Furthermore, Dr. Sherry referred several times to plaintiff's "medical records" and "medical history" in his report as the bases for his opinions, thus indicating he would testify about such records and history at trial. (Dr. Sherry Report at 1). Moreover, plaintiff's counsel made the tactical decision not to depose Dr. Sherry prior to trial to inquire further about his report or the documents on which he relied.
Dr. Sherry's Report complied with the Rule 26 requirements and therefore his testimony was properly allowed, pursuant to Rule 37. However, even if Dr. Sherry's testimony had been outside of the Report, and in violation of Rule 26 as plaintiff claims, "precluding testimony from the expert under this rule is a drastic remedy and should only be applied in cases where the party's conduct represents flagrant bad faith and callous disregard of the federal rules." Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y. 1995); see also McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y 1995). There is no evidence of bad faith or "callous disregard of federal rules" by the defendant. Dr. Sherry's report provided all the information required by Rule 26(a)(2), including his opinions to be expressed at trial, information he considered in forming those opinions, his qualifications and a list of all his publications within the last ten years, the compensation he was being paid for his testimony, and a list of all other cases in which he had previously testified within the preceding four years as required by the rule.
There are three factors courts consider when deciding whether to include or exclude the evidence under Rule 37:
1. The prejudice or surprise in fact of the party against whom the excluded witnesses would have testified.
2. The ability of that party to cure that prejudice
3. Bad faith or wilfulness in failing to comply with the court's orderWatanabe Realty Corp. v. City of New York, No. 01 Civ. 10137, 2004 U.S. Dist. LEXIS 954, at *5 (S.D.N.Y. Jan. 11, 2004); see also Clark v. Pennsylvania R. Co., 328 F.2d 591, 593-95 (2d Cir. 1964) (discussing similar factors). Given the fact that all sources on which Dr. Sherry's opinions were based were admitted as evidence, as well as the combined completeness of his Report and the Joint Pre-Trial Order, there was no element of surprise in his testimony. Furthermore, plaintiff had the ability to cure any alleged prejudice since plaintiff was given ample opportunity to cross-examine Dr. Sherry, and could have deposed him prior to trial but chose not to do so. There is no evidence of bad faith on the part of defendant. Consequently, the jury properly considered Dr. Sherry's testimony, and plaintiff presented no persuasive argument in favor of applying Rule 37 to preclude that testimony.
Plaintiff now claims that her counsel failed to call Dr. Meed as a rebuttal witness to Dr. Sherry's testimony because the defense "suddenly rested about noon time" on Friday after "the court expressed its strong displeasure for the defendant's failure to have its other witnesses" ready to testify before Tuesday. Therefore, "the plaintiff had to also rest, particularly in view of the Court's strongly expressed views." (Pl.'s Mem. Rep. to Defs.' Opp'n to Mot. for a New Trial at 7). Plaintiff's argument is specious. The record is clear that the Court gave ample opportunity to both sides to call and examine any witnesses they wished to call. At the conclusion of all available witnesses on Friday morning, defense counsel requested a side bar at which he stated that the defense rests. The Court then proceeded to inquire: "Are you sure? I am trying to give you the opportunity. If you think you are going to call a witness on Monday, I will let you do that. I am only doing this to give you that option." (Tr. at 817). Counsels for plaintiff and defendant both indicated that they did not wish to call any further witnesses.
C. The Jury's Assessment of the Evidence
Plaintiff also alleged that Dr. Sherry's trial opinions were "erroneous-false and contradicted by all other evidence." (Pl.'s Notice of Mot. for a New Trial at 7). To support such claims, plaintiff relies on the contradictions between the testimony of plaintiff's doctors and that of Dr. Sherry. However, without evidence of perjured testimony, mere contradictory evidence will not warrant a new trial. See Sorlucco v. New York City Police Dep't, 971 F.2d 864, 874 (2d Cir. 1992) (finding that it was error for the district court to grant a new trial based on contradictory witnesses where there was no evidence of perjury). Plaintiff bears the burden of putting forth "clear and convincing evidence" as to any alleged false testimony. See Riccuiti v. New York City Transit Auth, 70 F. Supp.2d at 314 (S.D.N.Y. 1999); see also ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484, 493 (2d Cir. 1993) ("Clear and convincing evidence" is required to support a finding of "willfully false testimony").
Plaintiff has not produced any evidence of "willfully false testimony." Rather, plaintiff relies on differences between Dr. Sherry's opinion and that of Dr. Gage and Dr. Bendo as to the ultimate cause of plaintiff's injuries. Such differences do not rise to the level of "clear and convincing evidence" that is required to overturn the jury's verdict. Furthermore,
"[a] trial judge should be least inclined to disturb a jury's verdict, based entirely or primarily upon witness credibility, where the conflicting accounts of the witnesses are equally plausible (or implausible), and there is no independent evidence in the trial record clearly demonstrating that, if a miscarriage of justice is to be avoided, one party's witnesses should not be believed. In those circumstances, the trial judge should accept the jury's findings, regardless of any doubts of his own in the matter."Riccuiti, 70 F.Supp. 2d 300, 308 (S.D.N.Y. 1999). This rule applies equally to both lay and expert testimony. In the present case, there was no independent evidence at trial, to support plaintiff's claims regarding the "erroneous-false" nature of Dr. Sherry's testimony.
In support of this claim, plaintiff appended a new post-verdict report by Dr. Meed (dated two weeks after trial) stating that there was "no evidence at the time of [plaintiff's] visit to [him] of spinal pathology." (Pl.'s Notice of Mot. for a New Trial Ex. 6). The evidence it presents is not new, rather it contains the same opinions expressed at trial and considered by the jury. Finally, it is unlikely that admission of this additional evidence would have produced a finding in favor of plaintiff at trial.
Finally, plaintiff claims that the jury's verdict erroneously disregarded the court's "thin skull plaintiff" charge requiring that "the defendant [take] the plaintiff as it finds her." (Pl.'s Notice of Mot. for a New Trial at 10). Plaintiff argues that given the expert evidence at the trial, "the jury was required to find defendant fully liable." (Id. at 11). The United States Supreme Court has held that it is an "almost invariable assumption of the law that jurors follow their instructions."Shannon v. United States, 512 U.S. 573, 585, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (quoting Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). The Second Circuit has also held that when reviewing a jury's verdict, it must be presumed that the jury followed the court's instruction. See Tesser v. Bd. of Educ., 370 F.3d 314, 320 (2d Cir. 2004). Plaintiff has not overcome the presumption that a reasonable jury could find that plaintiff's injuries were not caused by the collision.
Plaintiff's motion for a new trial is denied.
Defendant's cross-motion to strike is denied as moot. The court has reviewed the post-verdict report and finds that it does not serve as any legitimate basis to advance plaintiff's argument for a new trial.